AARON W. ALLEN, Complainant

MILES KIMBEL COMPANY, Respondent

This case arose from a complaint alleging sex discrimination in denial of promotion and training. An initial determination found no probable cause to believe such discrimination had occurred as alleged. The complainant filed a timely appeal, and the case was certified to hearing.

On February 14, 2012, a "Notice of Hearing On The Issue Of Probable Cause" was issued setting the matter for hearing on May 25, 2012. On May 9, 2012, a "Notice of Hearing Change" was issued changing the date of the hearing to September 25, 2012. On May 15, 2012, another "Notice of Hearing Change" was issued changing the date of the hearing again, to September 21, 2012.

The hearing was convened as scheduled on September 21, 2012. The respondent appeared and was prepared to proceed. The complainant failed to appear. On September 27, 2012, the ALJ issued an Order of Dismissal dismissing the complaint based on the complainant's failure to appear at the hearing.

On October 10, 2012, the complainant filed a petition for commission review of the ALJ's decision. Thereafter, the complainant filed a brief in support of his petition for review, the respondent filed a brief in opposition, and the complainant filed a response brief.

The commission has reviewed and considered the documents on file in this matter, including the petition for review and the briefs of the parties.

Failure of a complainant to appear at a scheduled hearing is covered by the rules of the Equal Rights Division, which provide in relevant part:

Wis. Adm. Code § DWD 218.18 Hearings
. . .
(4) Failure to appear at hearing. If the complainant fails to appear at the hearing, either in person or by a representative authorized to proceed on behalf of the complainant, the administrative law judge shall dismiss the complaint. If the respondent fails to appear at the hearing, the hearing shall proceed as scheduled. If, within 10 days after the date of hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.

The petition for review asserts that the complainant missed the scheduled hearing due to "excusable mistake. " It also asserts, in relevant part:

In the current matter, Mr. Allen missed a scheduled hearing on September 21, 2012 by believing the hearing was scheduled for another date. He fully intended to be present at the hearing in order to express his complaint. . . Mr. Allen regrets the inconvenience experience by the Judge Schacht and the Respondent for not appearing on scheduled date. However, he believes he has been a patient participant in the grievance process that has lasted nearly 4 years. He merely seeks to have the merits of the case evaluated by an impartial judge.

Complainant's brief in chief asserts that the complainant "errantly noted the date and missed the hearing," and "lost [his] day in court due to unfortunate mistake." It also repeats the assertions made in the petition for review, that the complainant missed the hearing because he believed it was scheduled for another date.

Respondent's brief argues as a threshold matter that the complainant's appeal is late because it was not filed within the 10-day period mentioned in the ERD's rule regarding failure to appear at hearing. Alternatively, the respondent argues that the complainant failed to show good cause for missing the hearing, and also that allowing another hearing would prejudice the respondent.

Complainant's reply brief asserts that the complainant "erroneously believed the hearing was scheduled for September 25, 2012," and that this occurred because "he was confused by the two dates shown on the Notice of Hearing and wrote the wrong date on his calendar."

The threshold argument made by the respondent here, that the complainant's appeal was late because it was not filed within the 10-day period in DWD 218.18, was rejected in Ellingsworth v. Humana Ins. Co., ERD Case No. CR200901209 (LIRC, Dec 30, 2010).  In Ellingsworth, the complainant failed to appear at a hearing.  No explanation for the non-appearance was submitted within 10 days after the date of hearing.  Thereafter, the ALJ issued an order dismissing the complaint.  The complainant then filed a petition for commission review.  The respondent argued that since the complainant did not attempt to submit evidence of good cause for her failure to appear within 10 days of the hearing as "required" by Wis. Adm. Code § DWD 218.18(4), the commission should affirm the dismissal of the complainant's complaint without consideration of the documentation that she had submitted to the commission.  The respondent argued that to do otherwise would render the § DWD 218.18(4) meaningless. LIRC's decision stated:

Wisconsin Administrative Code § DWD 218.18(4) does not, however, require that no consideration be given to a party's assertions/documentation that was not submitted within 10 days of the hearing.  What Wis. Admin. Code § DWD 218.18(4) states is that "If, within 10 days after the date of the hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing." (Emphasis added.)  The apparent purpose of this provision is to simply allow a period of time in which the administrative law judge could consider and decide whether a party has shown good cause for the party's failure to appear while the administrative law judge still maintained jurisdiction of the matter.  Once an administrative law judge's decision has been issued, a written objection to that decision filed by a party with the Equal Rights Division should generally be treated as a petition for commission review.

In Ellingsworth, LIRC accepted the petition for review and decided the issue of whether "good cause" had been established for the nonappearance.

As to whether "good cause" for non-appearance was shown, the applicable legal standards are:

A complainant whose case has been dismissed for failure to appear at a hearing must demonstrate, on appeal, that there was good cause for the failure to appear.  Good cause has been defined to mean either that the failure to appear was the result of excusable neglect (i.e., the degree of neglect a reasonable, prudent person might be expected to commit in similar circumstances), or a reason which, if established by competent evidence, would amount to circumstances beyond the individual's control or which would otherwise have prevented or made it unreasonable for the Complainant to appear. The failure to appear for the hearing must be explained with a degree of specificity adequate to allow a reasoned assessment by the decision-maker of whether it is probable that good cause could be established.

Schwarz v. Gateway Tech. College, ERD Case No. 200803337 (LIRC, Apr 23, 2010).

Here, the explanation offered for the complainant's failure to appear, was that he erroneously believed the hearing was scheduled for September 25, 2012. As to the specifics of how this error supposedly arose, the complainant's brief asserts that he "was confused by the two dates shown on the Notice of Hearing and wrote the wrong date on his calendar." Complainant's Response to Respondent's Brief, p. 3.

This explanation is not persuasive. While the notices did show different dates in different parts of the notice form, there was nothing confusing about the notices. They were quite clear in differentiating these dates.

The May 9, 2012 "Notice of Hearing Change" stated:

Please take note that:
The date for the hearing in this matter, which was MAY 25, 2012 has been changed to:
Date: SEPTEMBER 25, 2012

The May 15, 2012 "Notice of Hearing Change" stated:

Please take note that:
The date for the hearing in this matter, which was SEPTEMBER 25, 2012 has been changed to:
Date: SEPTEMBER 21, 2012

(bold face and underlining in original). These notices each clearly inform the reader what the hearing date was, and what it has been changed to. The complainant has not asserted that he did not receive the last "Notice of Hearing Change" which showed that the date of the hearing had been changed to September 21, 2012, and there is no reason to suspect that he did not receive it.

Given the complainant's assertions, the commission believes that the most likely explanation for what happened here is that when the complainant received the May 9 "Notice of Hearing Change" which re-set the hearing to September 25, he marked that date on the calendar, and that for some reason, when he later received the May 15 "Notice of Hearing Change" which re-set the hearing to September 21, he did not pay sufficient attention to it, and did not change the entry on his calendar.

Failure to pay sufficient attention to notices from the ERD concerning the scheduling of hearings is not "excusable neglect." See, e.g., Martin v. County of Milwaukee, ERD Case No. 200304928 (LIRC, Dec 17 2004):

The Complainant's failure to appear because she looked at the wrong document for the date of hearing did not amount to excusable neglect in this case. Excusable neglect is not synonymous with neglect, carelessness or inattentiveness. Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances. The circumstances presented here indicate that the Complainant's failure to appear for her scheduled hearing was not the act of a reasonably prudent person, but was the result of carelessness or inattentiveness.

The commission believes that the failure of complainant to pay sufficient attention to the notice from the ERD which changed the hearing from September 25 to September 21, is a clear example of "carelessness or inattentiveness" of the kind that may not be considered "excusable neglect."

For the foregoing reasons, the commission concludes that the complainant has not shown "good cause" for his failure to appear at the hearing in this matter, within the meaning of Wis. Adm. Code § DWD 218.18(4), and on that basis it issues the following:

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed December 28, 2012
allenaaron . rsd : 110 : 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc:
John S. Bennett, Attorney for Complainant
Robert H. Duffy, Attorney for Respondent

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2013/01/02